FIRST SECTION

CASE OF PUSHCHELENKO AND OTHERS v. RUSSIA

(Applications nos. 45392/11, 47671/11, 62205/11, 45312/13 and 53366/13)

JUDGMENT

STRASBOURG

12 March 2015

This judgment is final but it may be subject to editorial revision.

In the case of Pushchelenko and Others v. Russia,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
	Khanlar Hajiyev, President,
	Julia Laffranque,
	Dmitry Dedov, judges,
and André Wampach, Deputy Section Registrar,
Having deliberated in private on 17 February 2015,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in five applications (nos. 45392/11, 47671/11, 62205/11, 45312/13 and 53366/13) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by five Russian nationals (“the applicants”). Their full names, dates of birth, names of their representatives and dates of introduction of the applications are listed in the appendix.
2.  The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights.
3.  On 12 September 2013 the complaints concerning an excessive length of the applicants’ detention were communicated to the Government and the remainder of the applications was declared inadmissible.
THE FACTS
Article I.	I.  THE CIRCUMSTANCES OF THE CASE
Section 1.01	A.  Common facts
4.  All the applicants were prosecuted in Russia for various crimes. They were arrested and detained pending investigation and trial. Their detention was ordered and extended by the courts. The detention orders were essentially based on the gravity of the charges as the primary ground supporting the risk of the applicants’ absconding and interfering with the course of justice. The detention and extension orders used stereotyped formulae without addressing specific facts or considering alternative preventive measures.
Section 1.02	B.  Facts specific to each application
(a)	1.  The cases of Mr Pushchelenko and Mr Isachkov (applications nos. 45392/11 and 47671/11)
5.  Mr Pushchelenko and Mr Isachkov were co-defendants in the same criminal proceedings.
6.  On 15 October 2009 a criminal case was opened into murder of Mr G. On 15 and 16 January 2010 Mr Pushchelenko and Mr Isachkov were arrested on suspicion of their involvement in the murder. On 22 and 25 January 2010 they were formally charged. On 3 and 7 September 2010 they were additionally charged with fraud in respect of the Mr G.’s flat.
7.  On 31 December 2010 their case was submitted to the Primorskiy Regional Court for trial. On 29 February 2012 Mr Pushchelenko and Mr Isachkov were convicted as charged and sentenced to thirteen years’ imprisonment. On 24 October 2012 the Supreme Court of the Russian Federation quashed the judgment on appeal on account of procedural irregularities and ordered a retrial. The outcome of the proceedings is unknown.
8.  Mr Pushchelenko and Mr Isachkov were in detention on remand at least until 24 January 2013.
(b)	2.  The case of Mr Fobyanchuk (application no. 62205/11)
9.  On 4 March 2003 a criminal case was opened into the murder of Mr P. Subsequently this case was joined with an unspecified number of other criminal cases. On 27 May 2010 Mr Fobyanchuk was arrested on suspicion of his involvement in those acts. On 1 June 2010 he was formally charged with one count of murder and one count of attempted murder. On 15 April 2011 Mr Fobyanchuk was additionally charged with two counts of attempted murder. It appears that the charges in respect of the two counts of attempted murder were dropped but on 27 August 2011 Mr Fobyanchuk was additionally charged with illegal dealing in explosive substances.
10.  On 26 March 2012 Mr Fobyanchuk’s case was referred to the Primorskiy Regional Court for trial. He stood trial along with ten co‑defendants.
11.  As of the date of Mr Fobyanchuk’s last letter of 5 August 2014, the trial has been pending and he has remained in custody.
(c)	3.  The case of Mr Kasyanov (application no. 45312/13)
12.  On 7 September 2005 a criminal case was opened into the attempted murder of Mr Ye. Subsequently this case was joined with an unspecified number of other criminal cases. On 27 May 2010 Mr Kasyanov was arrested on suspicion of his involvement in the murder, together with Mr Fobyanchuk (see the case above). On 1 June 2010 he was formally charged. On 15 April 2011 Mr Kasyanov was additionally charged with the illegal sale of a Kalashnikov assault rifle.
13.  On 26 March 2012 Mr Kasyanov’s case was submitted to the Primorskiy Regional Court for examination on the merits. He stood trial along with ten co-defendants.
14.  As of the date of Mr Kasyanov’s last letter of 22 November 2013, the trial has been pending and he has remained in custody.
(d)	4.  The case of Mr Lysenko (application no. 53366/13)
15.  On 27 November 2010 Mr Lysenko was arrested on suspicion of his involvement in the murder of Mr B. On 5 August 2011 he was additionally charged with kidnapping, bribe-taking, money-laundering and perverting the course of justice. On 8 November 2011 the charges of running a criminal syndicate and of illegal dealing with firearms and explosives were added to the charge sheet. On 22 February 2012 Mr Lysenko was charged with an additional count of illegal dealing in firearms.
16.  On 21 March 2013 the case of Mr Lysenko and seven co-defendants was remitted to the Saratov Regional Court for a trial by a jury. On 18 September and 12 December 2013 the Regional Court extended the authorised period of detention in respect of the applicant and three other co-defendants, each time for a further three months. In granting further extensions, the Regional Court referred collectively to the four 
co-defendants, without examining their individual situations.
17.  On 17 February 2014 the Regional Court declared a mistrial. The trial started anew from the stage of jury selection. On 17 March and 10 June 2014 the Regional Court extended the authorised period of detention in respect of the applicant and three other co-defendants, each time for a further three months. In granting further extensions, the Regional Court referred collectively to the four co-defendants, without examining their individual situations. The extension orders were upheld on appeal on 28 March and 25 June 2014, respectively.
18.  As of the date of Mr Lysenko’s last letter of 5 September 2014, the trial has been pending and he has remained in custody.
Article II.	II.  RELEVANT DOMESTIC CASE-LAW
19.  On 22 May 2012 the Court gave judgment in the case of Idalov v. Russia, in which it found in particular a violation of Article 5 § 3 of the Convention on account of the excessive length of the applicant’s detention from 29 October 2002 to 24 November 2003 ([GC], no. 5826/03, §§ 142-149, 22 May 2012). Under Article 41 of the Convention, the Court awarded Mr Idalov EUR 7,150 in respect of non-pecuniary damage (ibid., § 208).
20.  On 26 December 2012 the Presidium of the Supreme Court of the Russian Federation quashed the judicial decisions in Mr Idalov’s criminal proceedings because the European Court of Human Rights found them to have been incompatible with the Convention.
21.  Subsequently Mr Idalov brought a claim against the Russian Ministry of Finance for compensation in respect of non-pecuniary damage that he had incurred in particular on account of his excessive pre-trial detention in the period between 29 October 2002 and 24 November 2003.
22.  By judgment of 1 April 2014, the Tverskoy District Court of Moscow granted his claim in part and awarded him 50,000 Russian roubles in respect of non-pecuniary damage. On 26 June 2014 the Moscow City Court upheld the judgment on appeal. In determining the amount of the award, the courts had regard to a number of factors, including the fact that an award had been previously made by the Court.
THE LAW
Article III.	I.  JOINDER OF THE APPLICATIONS
23.  Having regard to the similarity of the main issues under the Convention in the above cases, the Court decides to join the applications and examine them in a single judgment.
Article IV.	II.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
24.  The applicants complained that the duration of their pre-trial detention had been excessive in breach of Article 5 § 3 of the Convention, which reads as follows:
“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
Section 4.01	A.  Admissibility
25.  The Government submitted that the criminal proceedings against the applicants were still pending before the Russian courts. There remained therefore a possibility that the applicants would be acquitted and eligible for compensation at the domestic level. The examination of their complaints in the Strasbourg proceedings could result in the Court’s acting in parallel with the national judicial authorities, interfering with the pending proceedings and substituting itself for the domestic jurisdiction, thereby impairing the principle of subsidiarity. Should the applicants be acquitted, this could result in double compensation being awarded to them, first by the Court and later by the national court. The Government claimed that such situation had already occurred in the cases of Rychkov v. Russia (dec., no. 2210/04, 4 December 2008) and Matskus v. Russia (no. 18123/04, 21 February 2008). Mr Rychkov and Mr Matskus were defendants in the same case who lodged separate applications with the Court, alleging violations of Article 5 § 3 and Article 6 § 1 of the Convention. By judgment of 21 February 2008, the Court found the alleged violations of the Convention and made an award to Mr Matskus. On 31 March 2008 both Mr Rychkov and Mr Matskus were cleared of all charges and could claim compensation for unlawful prosecution. On 4 December 2008 the Court struck Mr Rychkov’s application out of its list of cases, noting that he had been acquitted and lost interest in the proceedings before the Court. In the Government’s view, Mr Matskus obtained a double compensation for the same violation. In sum, the Government considered that the complaint was premature.
26.  The Court notes that the present case concerns an allegedly excessive nature of the applicants’ detention pending trial. By lodging their applications with the Court, the applicants complained of a situation in which they had already been for some time and which was to last until it ended. In these circumstances, any subsequent developments in the criminal proceedings against them would not have affected the core of the matter underlying their complaint under the Convention because a significant period of their detention had already taken place.
27.  It is further recalled that acquittal of the applicant at the domestic level is not tantamount to acknowledging that the pre-trial detention was effected in breach of the Convention. Even though the person who is acquitted is eligible to claim compensation for “unlawful prosecution” in the framework of the “rehabilitation” proceedings, the Russian courts in these proceedings need not examine, and still less acknowledge, that the pre-trial detention was formally defective or that it was based on insufficient reasons or exceeded a reasonable time. The only ground for awarding compensation in these proceedings is the discontinuation of the prosecution rather than any alleged procedural irregularity in the pre-trial detention. This ground for compensation does not correspond to the basis of the applicant’s complaint under Article 5 § 3 and the alleged violation cannot therefore be redressed in these proceedings (see Shalya v. Russia, no. 27335/13, §§ 19 et seq., 13 November 2014, with further references). Therefore, an acquittal as such is incapable of depriving the applicant of his status as a “victim” of the alleged violation and the Court will have to continue the examination of the case (see Shalya, cited above, § 22).
28.  As regards the Government’s allegation that the applicant could unduly benefit from “double compensation” in the Strasbourg and domestic proceedings, the Court reiterates that an award of compensation for “unlawful prosecution” at the domestic level is distinct from the award the Court may make in respect of a violation of Article 5 § 3. On the other hand, as the case-law of the Russian courts demonstrates (see paragraphs 19-22 above), if the applicant receives compensation pursuant to the Court’s judgment in which a violation of Article 5 § 3 was found, nothing prevents Russian courts in subsequent proceedings from taking this award into account when determining the final amount of compensation in respect of non-pecuniary damage incurred on account of an excessively long detention.
29.  The Court notes in this connection that the Government’s interpretation of the Court’s decision in Mr Rychkov’s case (cited above) is misconceived. As it clearly follows from the text of the Court’s decision to strike the case out of the list, it was based on the applicant’s wish to withdraw his case. His acquittal and eligibility for compensation were only mentioned as an argument supporting the Court’s finding that respect for human rights did not require it to continue the examination of the application. By contrast, Mr Matskus did not withdraw his case (cited above). In so far as he complained about an excessive length of criminal proceedings and an excessive length of his detention pending those proceedings, the Court could, and did, examine both of those complaints before the final termination of the proceedings in question (see, e.g., Rokhlina v. Russia (dec.), no. 54071/00, § 5, 9 September 2004); were it otherwise, a Government would be able to evade jurisdiction of the Court by protracting domestic proceedings even longer. As noted above, the award Mr Matskus received from the Court under Article 41 of the Convention was distinct from any amount he might eventually have recovered in the framework of the “rehabilitation” proceedings. It follows that there was no “double compensation for the same violation” in that case.
30.  In sum, the Court reiterates that the possibility of acquittal does not make the complaint under Article 5 § 3 premature and that it need not postpose the examination of the complaint until the termination of the domestic criminal proceedings. If the applicant remains in custody, the Court will take into account the period of the applicant’s detention that had lapsed until the date of the Court’s judgment (see the case-law cited in Novokreshchin v. Russia, no. 40573/08, § 16, 27 November 2014).
31.  The Court considers that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
Section 4.02	B.  Period to be taken into consideration
32.  For the purposes of Article 5 § 3, the period to be taken into consideration ends with the applicant’s release or his or her conviction by the first-instance court (see, most recently, Idalov v. Russia [GC], no. 5826/03, § 112, 22 May 2012; Labita v. Italy [GC], no. 26772/95, §§ 145-147, ECHR 2000‑IV). In the instant case, as of the date of the last communication from the applicants, none of them was released or convicted. In these circumstances, it is appropriate to take into consideration the most recent date, on which the applicants were known to be in custody, as the end date of the period.
33.  In the light of the information available to the Court, Mr Pushchelenko and Mr Isachkov spent in custody at least two years four months and fourteen days, Mr Fobyanchuk at least four years two months and ten days, Mr Kasyanov at least three years five months and twenty-eight days, and Mr Lysenko at least three years nine months and nine days.
Section 4.03	C.  Merits
34.  The Court has already, on a large number of occasions, examined applications against Russia raising similar complaints under Article 5 § 3 of the Convention and found a violation of that Article on the grounds that the domestic courts extended an applicant’s detention relying essentially on the gravity of the charges and using stereotyped formulae without addressing his or her specific situation or considering alternative preventive measures (see, among many others, Valeriy Samoylov v. Russia, no. 57541/09, 24 January 2012; Romanova v. Russia, no. 23215/02, 11 October 2011; Sutyagin v. Russia, no. 30024/02, 3 May 2011; Logvinenko v. Russia, no. 44511/04, 17 June 2010; Gultyayeva v. Russia, no. 67413/01, 1 April 2010; Makarenko v. Russia, no. 5962/03, 22 December 2009; Lamazhyk v. Russia, no. 20571/04, 30 July 2009; Belov v. Russia, no. 22053/02, 3 July 2008, and Shukhardin v. Russia, no. 65734/01, 28 June 2007). Similar considerations apply in the circumstances of the present case in which the Government did not submit any arguments that could have allowed the Court to reach a different conclusion. As regards in particular the case of Mr Lysenko, the Court accepts that the existence of a general risk flowing from the organised nature of his alleged criminal activities constituted a relevant ground for extending his detention for the time necessary to complete the investigation and hear evidence from the accused and witnesses in court (see, for similar reasoning, Celejewski v. Poland, no. 17584/04, 4 May 2006, and Łaszkiewicz v. Poland, no. 28481/03, 
§§ 59-60, 15 January 2008). Nevertheless, to the extent that the Saratov Regional Court routinely extended the authorised period of detention in respect of Mr Lysenko and his co-defendants in a collective fashion, the Court reiterates that the practice of issuing collective detention orders without a case-by-case assessment of the grounds for detention in respect of each detainee is incompatible, in itself, with Article 5 § 3 of the Convention 
(see, among many others, Kolunov v. Russia, no. 26436/05, § 53, 9 October 2012, and Shcheglyuk v. Russia, no. 7649/02, § 45, 14 December 2006).
35.  There has accordingly been a violation of Article 5 § 3 of the Convention in respect of all the applicants.
Article V.	III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
36.  Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
37.  The applicants Mr Pushchelenko, Mr Isachkov and Mr Kasyanov did not submit any claim for just satisfaction. Accordingly, the Court considers that there is no call to award them any sum on that account.
Section 5.01	A.  Damage
38.  The applicant Mr Lysenko claimed 1,000,000 euros (EUR) in respect of non-pecuniary damage.
39.  The Government considered the amount to be excessive.
40.  The Court awards Mr Lysenko EUR 4,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.
Section 5.02	B.  Costs and expenses
41.  The applicant Mr Fobyanchuk claimed 10,000 US dollars for legal costs in the domestic criminal proceedings. He submitted a copy of a 
legal-services agreement for the amount of 300,000 Russian roubles (RUB). The applicant Mr Lysenko also claimed EUR 10,000 for the costs of his representation in the Strasbourg proceedings. He produced a copy of the payment receipt for the amount of RUB 400,000.
42.  The Government did not comment on Mr Fobyanchuk’s claim but considered that Mr Lysenko’s claim was excessive and unsubstantiated.
43.  Regard being had to the documents in its possession and to its 
case-law, the Court considers it reasonable to award the sum of EUR 850 covering costs under all heads to each of Mr Fobyanchuk and Mr Lysenko, plus any tax that may be chargeable on them.
Section 5.03	C.  Default interest
44.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1.  Decides to join the applications and declares them admissible;

2.  Holds that there has been a violation of Article 5 § 3 of the Convention;

3.  Holds
(a)  that the respondent State is to pay, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i)  to Mr Lysenko, EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii)  to Mr Lysenko, EUR 850 (eight hundred and fifty euros), plus any tax that may be chargeable to him, in respect of costs and expenses;
(iii)  to Mr Fobyanchuk, EUR 850 (eight hundred and fifty euros), plus any tax that may be chargeable to him, in respect of costs and expenses;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4.  Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 12 March 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	André Wampach	Khanlar Hajiyev
	Deputy Registrar	President

APPENDIX

No	Application No	Lodged on	Applicant
Date of birth
Place of residence	Represented by	
1.		45392/11	03/07/2011	Andrey Vladimirovich PUSHCHELENKO
04/10/1979
Vladivostok
	Yelena Leonidovna MELNIKOVA	
2.		47671/11	21/06/2011	Viktor Vadimovich ISACHKOV
15/02/1974
Vladivostok
		
3.		62205/11	17/08/2011	Oleg Aleksandrovich FOBYANCHUK
09/08/1963
Vladivostok
		
4.		45312/13	10/06/2013	Sergey Anatolyevich KASYANOV
16/08/1958
Vladivostok
		
5.		53366/13	23/07/2013	Mikhail Alekseyevich LYSENKO
08/03/1960
Volsk
	Dmitriy Vladimirovich AGRANOVSKIY